Early Termination of Federal Probation – Policies That Guide Judges’ Decisions
Post #2 of a 3-Part Series
In this previous post on early termination of federal probation, we discussed factors judges are required consider when deciding whether or not to release somebody on federal supervision early. In this post we’ll discuss the policy factors judges may (or should) consider when making these decisions.
As part of the sentencing factors, discussed in the previous post, factor §3553(a)(5) specifically points to the Sentencing Commission’s policy on early termination.
The independent, Judicial Branch of government makes its own policy with the Judicial Conference (specifically the Committee on Criminal Law). This policy is essentially the training manual for Probation Officers on how to supervise federal offenders, and includes guidance on early termination. Even though consideration of this policy is not required, those policies are, “at the very least entitled to respectful consideration.” 1Kennedy dissent, Hollingsworth v. Perry, 130 S.Ct. 705, 712 (2010).
Sentencing Commission Policy
Generally, the policy of the Sentencing Commission actively recommends early termination of supervised release in “appropriate cases.” See the Guidelines Manual in the application notes to section 5D1.2. The only example of what would be an appropriate case is a drug addict who completes a substance abuse program, thereby reducing their presented risk to the community through re-offending. This one example is not an exhaustive list, but simply one example of many which could make a defendant appropriate for early termination.
A policy that is much more specific about early termination is found in the application notes to section 1B1.10 (see application note 7(B)). This policy applies to inmates who are/were eligible for retroactive sentence reductions, but were released too early to take advantage of them (meaning they spent more time in prison than they should have, looking back). This policy does not require early termination to be granted, but gives this particular group of defendants get special consideration for early termination when their requests are considered.
“…the court may consider any such reduction that it was unable to grant in connection with any motion for early termination of a term of supervised release under 18 U.S.C. § 3583(e)(1). However, the fact that a defendant may have served a longer term of imprisonment than the court determines would have been appropriate in view of the amended guideline range determined under subsection (b)(1) shall not, without more, provide a basis for early termination of supervised release.”
Judicial Conference Policy
This policy directs probation officers to consider more detailed factors about a defendant in order to make recommendations about early termination. These are the standards adopted by the Judicial Conference Committee on Criminal Law, and are periodically updated, most recently in July of 2018.
Formerly called Monograph 109, this policy manual is now titled “Post-Conviction Supervision”. It is very tightly controlled and is not available for public consumption at all. All attempts we have made to get a copy of this document so far have failed. All that is known about this policy manual’s stance on early termination comes from United States v. Shaw.2445 F.Supp.3d 1060 (D. Colo. 2020)
This policy condenses the previous nine factors into a six-factor test, the result of which determines if the Probation Office should recommend for or against early termination. This test applies after the applicant has served more than 18 months of supervision. More importantly, though, is that the policy assumes that the supervising Probation Office will recommend an offender for early termination if they (1) have served more than 18 months of supervision and, (2) meets all six criteria. 3Before 18 months of supervision is complete, there is not such assumption and early termination is less likely to be supported by the U.S. Probation Office. For these offenders, there are only two factors considered: “For a defendant who requests early termination during the first 18 months of supervision, ‘the appropriateness of early termination must be based on the person’s overall progress in meeting supervision objectives,” which includes that the person (1) substantially satisfied the requirements of the court order; and (2) demonstrates a willingness and capability to remain lawful beyond the period of supervision.’ [Post-Conviction Supervision] §360.20(b)-(c).” Shaw at 1163.
These six criteria encompass a wide range of conduct and supervisory considerations, but in general, a defendant who has committed no violations, and is living a happy, healthy, and successful life meets all six without much problem.
To learn much more about both of these policies, check out the Federal Probation Bible: we (literally) “Wrote the Book” on federal supervision!
Here is the short version:
Those that haven’t gotten into any trouble while on supervision, and are a complete waste of time and money for the government to continue to supervise, have the greatest chance for early termination.
There are, however, two factors not contained in either set of policies which can make the biggest difference in gaining early termination. In the next post, we’ll take a look at both.